Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 1 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 1 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) BEAN LLC d/b/a FUSION GPS ) 1700 Connecticut Ave., NW ) Suite 400 ) Washington, DC 20009, ) ) Plaintiff, ) ) v. ) Case No. 1:17-cv TSC ) DEFENDANT BANK, ) ) Defendant, ) ) ) PERMANENT SELECT COMMITTEE ON ) INTELLIGENCE OF THE U.S. HOUSE OF ) REPRESENTATIVES, ) Intervenor. ) ) RESPONSE OF INTERVENOR THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE OF THE U.S. HOUSE OF REPRESENTATIVES IN OPPOSITION TO PLAINTIFF S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION THOMAS G. HUNGAR General Counsel TODD B. TATELMAN Associate General Counsel KIMBERLY HAMM Assistant General Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C (202) (telephone) Thomas.Hungar@mail.house.gov October 23, 2017 Counsel for Intervenor Permanent Select Committee on Intelligence of the U.S. House of Representatives

2 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 2 of 54 TABLE OF CONTENTS TABLE OF AUTHORITIES... INTRODUCTION...1 BACKGROUND...3 I. THE COMMITTEE S RUSSIAN ACTIVE MEASURES CAMPAIGN INVESTIGATION....3 II. THE COMMITTEE S INTEREST IN PLAINTIFF S ACTIVITY....5 III. THE COMMITTEE S SUBPOENA TO DEFENDANT BANK....9 ARGUMENT...11 I. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS A. The Constitution Confers Broad Investigatory Powers on Congress B. All Committee and House Rules Were Followed With Respect to the Subpoena At Issue...14 C. The Committee s Investigation Is Fully Authorized by House Resolution D. The Right to Financial Privacy Act ( RFPA ) Does Not Apply to Congressional Subpoenas E. The Gramm-Leach-Bliley Act Also Does Not Apply to Congressional Subpoenas F. Plaintiff s Objections on First Amendment Grounds Lack Merit Plaintiff Is Not an Association For Purposes of the First Amendment Plaintiff Lacks Standing to Assert The Alleged First Amendment Rights of Its Customers Plaintiff Has Not Engaged In Protected First Amendment Activities and, In Any Event, The Disclosure of its Financial Records Does Not Offend the First Amendment Plaintiff s Free Speech Rights are Not Impaired....32

3 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 3 of Plaintiff Alleges No Relevant Harm Arising From the Disclosure of Its Financial Records...33 II. III. PLAINTIFF HAS FAILED TO ESTABLISH A LIKELIHOOD OF IRREPARABLE INJURY THE BALANCE OF EQUITIES TIPS SHARPLY IN FAVOR OF THE COMMITTEE IV. THE PUBLIC INTEREST SUPPORTS ENFORCEMENT OF THE SUBPOENA CONCLUSION...44 CERTIFICATE OF SERVICE ii

4 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 4 of 54 TABLE OF AUTHORITIES Cases Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014)...11, 37 AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)...28, 33 Ashland Oil Co., Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976)...41 Associated Press v. N.L.R.B., 301 U.S. 103 (1937) Barenblatt v. United States, 360 U.S. 109 (1959)...12, 13, 42 Branzburg v. Hayes, 408 U.S. 665 (1992)...32, 36 Brown v. District of Columbia, 888 F. Supp. 2d 28 (D.D.C. 2012)...41 Buckley v. Valeo, 424 U.S. 1, (1976)...13 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)...38 Citizens United v. FEC, 558 U.S. 310 (2010)...28, 32 CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995)...11 Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008)...20 Comm. on Oversight & Gov t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013) Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009)...11, 12 iii

5 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 5 of 54 Dole v. Local Union 375 Plumbers Int l Union, 921 F.2d 969 (9th Cir. 1990)...34 Eastland v. U.S. Servicemen s Fund, 421 U.S. 491 (1975)...1, 12, 13, 14, 17, 19 Exchange Point LLC v. SEC, 100 F. Supp. 2d 172 (S.D.N.Y. 1999)...20 Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978)...14, 23, 41, 43 FEC v. Auto. Bus. Svcs., 888 F. Supp. 539 (S.D.N.Y. 1995)...30 FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (1981)...28 Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100 (9th Cir. 2006)...26, 29 FTC. v. Owens-Corning Fiberglass Corp., 626 F.2d 966 (D.C. Cir. 1980)...41 FTC v. TRW, Inc., 628 F.2d 207 (D.C. Cir.1980)...43 Ghandi v. Police Dep t of City of Detroit, 747 F.2d 338 (6th Cir. 1984)...33 Holderbaum v. United States, 589 F. Supp. 107 (D. Colo. 1984)...31 Hubbard v. United States, 514 U.S. 695 (1995)...21 Hunt v. Wash. State Apple Advert. Comm n, 432 U.S. 333 (1977)...26, 27 IDK, Inc. v. Cnty. of Clark, 836 F.2d 1185 (9th Cir. 1988)...31 In re Grand Jury Investigation No , 723 F.2d 447 (6th Cir. 1983)...31 iv

6 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 6 of 54 In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987)...32 In re Grand Jury Subpoena Duces Tecum Served Upon PHE, Inc., 790 F. Supp (W.D. Ky. 1992)...31 In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006)...32 In re Grand Jury Subpoena Served Upon Crown Video Unlimited, Inc., 630 F. Supp. 614 (E.D.N.C. 1986)...31 In re Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740 (D.C. Cir. 2006) Int l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274 (1986)...26 Kerr v. United States, 801 F.2d 1162 (9th Cir. 1986)...36 Laird v. Tatum, 408 U.S. 1 (1972)...33 League of Women Voters of the U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016)...39 Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508 (D.C. Cir. 1993)...43 McGrain v. Daugherty, 273 U.S. 135, (1927)...12, 13, 19, 22, 42 McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975)...14 Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009)...40 Murphy v. Department of Army, 613 F.2d 1151 (D.C. Cir. 1979)...41 Nat l Ass n for the Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449 (1958)...26, 28, 35 v

7 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 7 of 54 Nat l Ass n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009)...35 Nat l Treasury Emps. Union v. United States, 927 F.2d 1253 (D.C. Cir. 1991)...40 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010)...28 Pursuing Am. s Greatness v. FEC, 831 F.3d 500 (D.C. Cir. 2016)...28, 32, 39 Reporters Comm. for Freedom of the Press v. Am. Tel. & Tel. Co., 593 F.2d 1030 (D.C. Cir. 1978) Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972)...36 Senate Permanent Subcomm. on Investigations v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016)...35 Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)...11, 12 Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007)...15 St. German of Alaska E. Orthodox Catholic Church v. United States, 840 F.2d 1087 (2d Cir. 1988)...36 Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938)...14 United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996)...29 United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976)...19 United States v. Bell, 414 F.3d 474 (3d. Cir. 2005)...31 United States v. Harriss, 347 U.S. 612 (1954)...35 vi

8 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 8 of 54 United States v. Judicial Watch, Inc., 266 F. Supp. 2d 1, 20 (D.D.C. 2002)...36 United States v. Miller, 425 U.S. 435 (1976)...34 United States v. Norcutt, 680 F.2d 54 (8th Cir. 1982)...34 United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994) Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)...11, 12, 37 Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C.Cir.1985)...38 Constitution and Statutes U.S. Const. art. I, 5, cl U.S.C. 551(1)(A) & (B) U.S.C , U.S.C U.S.C U.S.C. 3412(d) U.S.C U.S.C , U.S.C Legislative Sources 163 Cong. Rec. H7-H11 (daily ed. Jan. 3, 2017)...17 H. Rep. No , Investigation of Political Fundraising Improprieties and Possible Violations of Law, Interim Report (105th Cong.)...37 vii

9 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 9 of 54 Rules of the U.S. House of Representatives, Rule IX.3(b)...33 Rules of the U.S. House of Representatives, Rule X.3(m)...13, 18 Rules of the U.S. House of Representatives, Rule XI.1(b)(1)...13, 33 Rules of the Permanent Select Comm. on Intelligence, Rule Rules of the Permanent Select Comm. on Intelligence, Rule , 8, 9, 13, 16 Rules of the Permanent Select Comm. on Intelligence, Rule 12(a)(1) , 33 Other Sources Evan Perez, Manu Raju, and Jeremy Herb, Nunes Signs Off On New Subpoenas to Firm Behind Trump-Russia Dossier, CNN (Oct. 10, 2017, 9:47 PM)...16 Press Release, Permanent Select Comm. on Intelligence, Nunes Statement on Russia Investigation (Apr. 6, 2017)...4 Press Release, Permanent Select Comm. on Intelligence, Intelligence Committee Chairman, Ranking Member Establish Parameters for Russia Investigation (Mar. 1, 2017)...3, 25, 43, 44 Senator Chuck Grassley, Press Release, Checking the Facts: There Is Evidence Fusion GPS Was Paid by Russia While Compiling Trump Dossier (Aug. 17, 2017)...5 Senator Chuck Grassley, Press Release, Complaint: Firm behind Dossier & Former Russian Intel Officer Joined Lobbying Effort to Kill Pro-Whistleblower Sanctions for Kremlin (Mar. 31, 2017)...5 viii

10 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 10 of 54 INTRODUCTION Intervenor the Permanent Select Committee on Intelligence of the U.S. House of Representatives (the Committee ) 1 respectfully submits this response in opposition to Plaintiff s Motion for a Temporary Restraining Order and Preliminary Injunction (Oct. 20, 2017) (ECF No. 2) ( Plaintiff s Memorandum or Pl. Mem. ). Plaintiff admitted at the October 20 teleconference that issuance of its requested relief would have the same effect as an order quashing the Committee s constitutionally authorized subpoena for documents. By bringing suit only against the Defendant Bank, Plaintiff seeks to do indirectly what long-standing Supreme Court precedent unambiguously prevents it from doing directly; namely, quash a valid congressional subpoena. See Eastland v. U.S. Servicemen s Fund, 421 U.S. 491, (1975). The relief Plaintiff seeks is extraordinary and would directly impede an ongoing congressional investigation of the highest national importance. This action is wholly the result of the gamesmanship and recalcitrance of Plaintiff in refusing to cooperate with the Committee s investigation into allegations of Russian-related interference in the 2016 presidential election. Plaintiff s obstruction of this investigation began in August 2017, shortly after being contacted by the Committee with a request for voluntary production of documents. Negotiations over the Committee s request lasted for several weeks, until ultimately the Committee was forced to conclude that voluntary compliance was unlikely to 1 The Bipartisan Legal Advisory Group ( BLAG ) of the United States House of Representatives has authorized the Committee s intervention in this matter. The BLAG is comprised of the Honorable Paul Ryan, Speaker of the House, the Honorable Kevin McCarthy, Majority Leader, the Honorable Steve Scalise, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip, and speaks for, and articulates the institutional position of, the House in all litigation matters. Rule II.8(b), Rules of the United States House of Representatives, available at republicans.rules.house.gov/files/115/pdf/house-rules-115.pdf. The Democratic Leader and Democratic Whip decline to support the Group s position in this case. 1

11 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 11 of 54 be obtained. On October 4, 2017, the Committee issued subpoenas to Plaintiff s three cofounders Glenn Simpson, Peter Fritsch, and Thomas Catan as well as to the Defendant Bank for the purpose of obtaining information relevant and necessary to its investigation. Declaration of Mark R. Stewart (Oct. 23, 2017) ( Stewart Declaration ) 14. On October 16, 2017, counsel for Plaintiff transmitted to the Committee a 17-page letter raising baseless challenges to the legitimacy of the Committee s investigation, objecting to the subpoenas, and invoking various meritless claims of privilege. Stewart Decl. 16. To date, more than two months after the Committee first requested Plaintiff s cooperation and assistance in the investigation, no documents have been produced to the Committee. Stewart Decl. 21. Further frustration of the Committee s investigation occurred on October 18, 2017, when two of Plaintiff s co-founders Messrs. Fritsch and Catan appeared before the Committee for compelled depositions. During those depositions, each witness refused to answer any questions of substance even basic questions about Fusion GPS s general business actives as well as its activity related to the 2016 election, see Stewart Decl. 17 instead opting to invoke Constitutional privileges under the First and Fifth Amendments. Ironically, a number of the questions that Mr. Fritsch refused to answer as purportedly privileged, such as questions related to Fusion GPS business practices, see Fritsch Decl., 6, as well as specific questions regarding whether Fusion GPS was engaged to research and investigate presidential candidate Donald J. Trump, see id. at 9, and who they may have employed to conduct such research, see id., have now been answered in Mr. Fritsch s declaration filed publicly with this Court only two days after Mr. Fritsch asserted under oath that providing such information would somehow infringe his right against self-incrimination and his right to free speech. See ECF No. 2-2, Declaration of Peter Fritsch ( Fritsch Declaration ). Plaintiff s recalcitrance and bad-faith 2

12 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 12 of 54 misconduct simply confirm the Committee s inability to obtain meaningful information from Plaintiff and thus the necessity of obtaining the information that Defendant Bank stands ready and willing to provide. Stripped of its histrionics, Plaintiff s blunderbuss attacks on the Committee Chairman, the Committee s investigation, and the Committee s rules and internal procedures lack merit. Plaintiff has provided no grounds sufficient to establish any likelihood of success on the merits, much less a substantial one. The fact that Plaintiff does not approve of the Committee s investigation, the Chairman s role in issuing the subpoena, or the Committee s efforts to obtain relevant information does not create a legal rationale for this Court to grant the relief sought. Accordingly, Plaintiff s motion should be denied. BACKGROUND I. The Committee s Russian Active Measures Campaign Investigation. On March 1, 2017, in the exercise of the Committee s constitutional oversight role, Committee Chairman Devin Nunes and Ranking Member Adam Schiff publicly announced a jointly approved a Scope of Investigation relating to the Russian active measures campaign targeting the 2016 election. See Comm. Press Release, Intelligence Committee Chairman, Ranking Member Establish Parameters for Russia Investigation (Mar. 1, 2017). 2 The Committee s ongoing investigation seeks to answer the following questions: What Russian cyber activity and other active measures were directed against the United States and its allies? Did the Russian active measures include links between Russia and individuals associated with political campaigns or any other U.S. Persons? 2 Available at 3

13 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 13 of 54 What was the U.S. Government s response to these Russian active measures and what do we need to do to protect ourselves and our allies in the future? What possible leaks of classified information took place related to the Intelligence Community Assessment of these matters? Id. As Committee Ranking Member Adam Schiff explained, We must follow the facts wherever they may lead, leaving no stone unturned, and that must also include both the Russian hacking and dumping of documents as well as any potential collusion between Russia and U.S. citizens. This investigation is a national security necessity and anything less than a full accounting of all the facts will be insufficient to protect the country and meet the expectations of the American people. Id. (emphasis added). Chairman Nunes also promised the American people that we will fully investigate all the evidence we collect and follow that evidence wherever it leads. Id. (emphasis added). On April 6, 2017, Chairman Nunes announced that Representative Mike Conway, with assistance from Representatives Trey Gowdy and Tom Rooney, would lead the investigation, but that Chairman Nunes would continue to fulfill all my other responsibilities as Committee Chairman. Comm. Press Release, Nunes Statement on Russia Investigation (Apr. 6, 2017). 3 Pursuant to Committee Rules, one of those responsibilities is to issue and sign Committee subpoenas. See Rule 10(a), (c) Rules of Procedure for the Permanent Select Committee on Intelligence of the U.S. House of Representatives (115th Cong.). To provide the American people with a full accounting of all the facts, and based in part on classified information obtained by the Committee, on October 4, 2017, the Chairman, pursuant to the request of Representative Conaway and in accordance with Rule 10 of the Committee s Rules of Procedure, issued the subpoena to the Bank that is the subject of this 3 Available at 4

14 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 14 of 54 litigation. See Decl. of Mark R. Stewart (Oct. 23, 2017) ( Stewart Declaration ). The subpoena sought financial records relating to one or more accounts at the Bank in Plaintiff s name. See Subpoena (Oct. 4, 2017), attached as Ex. A to Levy Decl. (ECF No. 2-3). As explained below, the subpoena was issued after Plaintiff failed to cooperate with the Committee s investigation and in order to obtain information that is plainly relevant to the investigation. II. The Committee s Interest In Plaintiff s Activity. Plaintiff is a DC-based firm that provides premium research, strategic intelligence, and due diligence services to corporations, law firms, and investors worldwide. See Plaintiff firm was founded by former Wall Street Journal reporters Glenn Simpson, Peter Fritsch, and Thomas Catan. See, e.g., Fritsch Decl., 3-5. Public reports reveal that Plaintiff has allegedly been involved in lobbying against the Global Magnitsky Human Rights Accountability Act (which allows the Executive Branch to impose travel restrictions and sanctions on foreign persons responsible for human rights violations); providing litigation support in the Magnitsky-related Prevezon Holdings money laundering case; and receiving compensation from the Russian government. See Stewart Decl. 8; see also Senator Chuck Grassley, Press Release, Checking the Facts: There Is Evidence Fusion GPS Was Paid by Russia While Compiling Trump Dossier (Aug. 17, 2017); 4 Senator Chuck Grassley, Press Release, Complaint: Firm behind Dossier & Former Russian Intel Officer Joined Lobbying Effort to Kill Pro-Whistleblower Sanctions for Kremlin (Mar. 31, 2017). 5 4 Available at 5 Available at 5

15 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 15 of 54 As publically reported, Plaintiff was commissioned by an unknown third party in Fall 2015 to conduct political opposition research on then presidential candidate Donald Trump. See Stewart Decl. 5. In Spring 2016, that third party allegedly withdrew from or terminated its contract with Plaintiff. See Stewart Decl. 5. However, publicly available information indicates that a separate client took over or initiated a contract with Plaintiff for opposition research on then-candidate Donald Trump. See Stewart Decl. 5 Based on public reporting, as part of that second contract, Plaintiff commissioned former British intelligence officer Christopher Steele to conduct a private investigation on Trump. See Stewart Decl. 4, 6. That work yielded a series of reports, compiled in a 35-page private intelligence dossier that made unverified allegations of misconduct pertaining to Trump s relationship with Russian individuals and to alleged collusion between the Trump campaign and representatives of the Russian Government during the 2016 presidential election ( Trump Dossier ). See Stewart Decl. 4, 6. The public record further indicates that Mr. Steele was paid an undisclosed sum of money for previous work performed on behalf of the Federal Bureau of Investigation ( FBI ), Stewart Decl. 7, and that information contained in the Trump Dossier had been provided to the FBI by late See Stewart Decl. 4-6, 9. Importantly, for purposes of the Committee s present investigation, public reporting reveals that other elements of the Intelligence Community also became aware of the Trump Dossier contents, and providing briefings regarding the Trump Dossier to both President Obama and then President-elect Trump in early January See Stewart Decl. 9. A version of the Trump Dossier was published by BuzzFeed News on 6

16 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 16 of 54 January 10, See Stewart Decl. 4; Ken Bensinger, et al, These Reports Allege Trump Has Deep Ties to Russia (Jan. 10, 2017). 6 As part of its inquiry into the Russian active measures targeting the 2016 U.S. election, the Committee seeks to understand all facets of the Trump Dossier which include: Who paid for it? Who received it? What steps were taken to corroborate the information contained therein? Did the FBI rely on the Trump Dossier as part of its counterintelligence investigation that was initiated in July 2016, as publicly announced by former FBI Director James Comey on March 20, 2017? See Stewart Decl. 9, 10. The key to answering many of these questions lies with information in the possession of Plaintiff, as well as records of one or more Fusion accounts at Defendant Bank. See Stewart Decl. 11. In addition, the Committee has obtained information suggesting that at least three Russian individuals with ties to Plaintiff also were present at the meeting with Donald Trump, Jr., at Trump Tower on June 9, See Stewart Decl. 8. Based on this information, the Committee s investigation seeks to investigate the extent of those ties and the potential relationship to the Russian active measures campaign. See Stewart Decl. 8. The records sought by the subpoena will allow the Committee to fully understand and perhaps conclusively determine not only who paid for the Trump Dossier but also reveal the amount of funds that Plaintiff paid to Mr. Steele for the performance of his work, as well as determine whether Plaintiff engaged in other Russia-related work within the scope of the Committee s pending investigation. See Stewart Decl. 11. Additionally, information sought by the subpoena will assist the Committee in determining whether the FBI relied on the Trump Dossier as part of its counterintelligence investigation in July See Stewart Decl Available at 7

17 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 17 of 54 Such information is crucial for the Committee to fully investigate not only the Trump Dossier and its relevance to the question of whether there was possible collusion between the Russian Government and the individuals associated with political campaigns or any other U.S. Persons, but also other aspects of the Committee s investigation. See Stewart Decl. 11. To obtain the requisite information, on August 18, 2017, the Committee issued a letter signed by Representative K. Michael Conaway and Ranking Member Adam Schiff to counsel representing Messrs. Simpson, Fritsch, and Catan, requesting they provide relevant documents and materials that could reasonably lead to the discovery of facts within the Committee s investigation, and inviting them to appear voluntarily before the Committee for a transcribed interview. See Stewart Decl. 12, Ex. A (Aug. 18, 2017 Letter). The Committee engaged in numerous exchanges and telephone conversations, including hosting a meeting with Plaintiff s attorneys, Joshua Levy and Rachel Clattenberg, to understand their clients concerns with complying with the terms of the Committee s letters. See Stewart Decl. 13. Unfortunately, those discussions reached an impasse. Mr. Levy informed the Committee that none of the three individuals would be willing to fully answer all questions likely posed by the Committee regarding Plaintiff s role in the creation of the Trump Dossier or even appear for a voluntary interview without a written agreement preserving privileges and limiting the scope of questioning. See Stewart Decl. 13(b). Mr. Levy advised that his clients would likely invoke attorney-client, contractual and unspecific First Amendment privileges to avoid answering questions concerning the creation of the Trump Dossier. See Stewart Decl. 13(b). Accordingly, on October 4, 2017, the Chairman, pursuant to the request of Representative Conaway and in accordance with Rule 10 of the Committee s Rules of Procedure for the 115th Congress, issued subpoenas to Messrs. Simpson, Fritsch, and Catan ( Fusion GPS Subpoenas ) 8

18 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 18 of 54 as well as a subpoena to Defendant Bank. See Stewart Decl. 15. In accordance with these rules, Representative Conaway, requested Chairman Nunes to issue the subpoenas, and notice was provided to the Ranking Member prior to their issuance. See Stewart Decl. 14. The Fusion GPS Subpoenas required Messrs. Catan and Fritsch to produce all responsive documents by October 11, 2017, and to appear for deposition on October 18, See Stewart Decl. 14 (Mr. Simpson was required to produce documents by October 17, 2017 and appear on November 8, 2017.) At the request of counsel for Plaintiff, the deadline for production by Messrs. Fritsch and Catan was extended to October 16, See Stewart Decl. 14(a). As of the date of this filing, no documents have been produced to the Committee in response to the Fusion GPS Subpoenas. See Stewart Decl. 21. Instead, on October 16, 2017, counsel for Fusion GPS transmitted to the Committee (and promptly to the press) a 17-page letter to the Committee attacking the legitimacy of the subpoenas and invoking various Constitutional and procedural privileges. See Stewart Decl. 16 & Ex. B (Oct. 16 Letter). On October 18, 2017, Messrs. Catan and Fritsch, accompanied by counsel Mr. Levy, appeared before the Committee for deposition. See Stewart Decl. 17. During that deposition, both deponents refused to answer any questions, purportedly on the basis of generalized Constitutional privileges. See Stewart Decl. 17. As such, the Committee was unable to obtain any information in furtherance of its investigation. III. The Committee s Subpoena To Defendant Bank. After several weeks of back-and-forth with counsel for Fusion GPS revealed that Fusion GPS would not cooperate with the Committee s inquiry, the Committee sought records from Defendant Bank relating to Fusion GPS. The Chairman, pursuant to the request of Representative Conaway and in accordance with Rule 10 of the Committee s Rules of Procedure 9

19 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 19 of 54 for the 115th Congress, issued a subpoena to Defendant Bank on October 5, 2017 ( Bank Subpoena ). See Stewart Decl. 14; Levy Decl. Ex. A. At the Bank s request, its deadline for production was extended from October 13, 2017 to October 23, See Stewart Decl. Ex. C at 1 (Oct. 18, 2017 Letter). Defendant Bank, through counsel, in a letter dated October 18, 2017, initially lodged a number of objections to the Bank Subpoena, several of which parroted objections previously made by Mr. Levy on behalf of Fusion GPS. See Stewart Decl. Ex. C at 1 (Oct. 18, 2017 Letter). On October 19, 2017, after Committee Senior Counsel Kashyap P. Patel informed Defendant Bank that all of its procedural and substantive objections had been rejected, Defendant Bank agreed to comply with the Bank Subpoena and to produce all responsive documents by 9 A.M. on October 23, See Stewart Decl. 18. Defendant Bank has represented to the Committee that the identification and preparation of responsive records is complete, and in the possession of counsel awaiting production to the Committee. See Stewart Decl. 18(c). On October 19, 2017, after the close of business, counsel for Fusion GPS contacted Committee staff and indicated that absent some resolution of the Bank Subpoena they intended to seek relief in federal court. See Stewart Decl. 19. Despite the late hour, Committee staff communicated with counsel and, after considering the requests made, declined to extend Defendant Bank s deadline for compliance with the Subpoena in light of Defendant Bank s representation that the responsive records were ready for production. See Stewart Decl. 19(a) & (b). On the afternoon of Friday, October 20, 2017, less than a full business day before the subpoena deadline and at least 8 days after it appears that counsel for Fusion GPS became aware of the Bank Subpoena, counsel for Fusion GPS notified the Committee that it had filed the instant action challenging the validity of the Bank Subpoena. See Stewart Decl. 19(d). A 10

20 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 20 of 54 telephonic hearing with the Court and all interested parties was held at 5 p.m. the same afternoon. See Minute Entry (Oct ). The Court took the matter under advisement and on the evening of October 20, 2017, issued an order directing the Committee to file a motion to intervene by Noon on Saturday, October 21, See Minute Order (Oct. 20, 2017). In accordance with the Court s Order, the Committee filed its Motion to Intervene on October 20, See ECF No. 7. The Committee s Motion informed the Court that Defendant Bank had been granted until Wednesday, October 25, 2017 at 9 a.m. to comply with the subpoena and requested that it be granted until Monday, October 23, 2017, at 6 p.m. to file its response in opposition to Plaintiff s Motion. See id. at 1 n.1. The Court granted both the Committee s Motion to Intervene and an extension of time to file. See Minute Entry (Oct. 21, 2017). ARGUMENT A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief, Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). To demonstrate entitlement to a preliminary injunction, a litigant must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the 11

21 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 21 of 54 injunction. Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). 7 I. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. The Constitution Confers Broad Investigatory Powers on Congress. Congress s power to secure needed information by such means [i.e., compulsory process] has long been treated as an attribute of the power to legislate [and] is an essential and appropriate auxiliary to the legislative function. McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927); see also, e.g., Eastland, 421 U.S.at 504 n.15 ( [T]he scope of [Congress s] power of inquiry... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution. ) (citation and quotation marks omitted); Barenblatt v. United States, 360 U.S. 109, 111 (1959) ( The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate[.] ). As a corollary to Congress s constitutionally-based oversight and investigative authority, the Supreme Court has made clear that the [i]ssuance of subpoenas... has long been held to be a legitimate use by Congress of its power to investigate. Eastland, 421 U.S. at 504 (citation omitted). As the Court explained: A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which not infrequently is true recourse must be had to others who do possess 7 The D.C. Circuit has traditionally evaluated the four injunction factors on a sliding scale, but a number of Circuit Judges have correctly read the Supreme Court s decision in Winter at least to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary injunction. Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). The Committee submits that in light of Winter, the sliding-scale approach is no longer valid, and likelihood of success is an indispensable prerequisite to injunctive relief. 12

22 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 22 of 54 it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry with enforcing process was regarded and employed as a necessary and appropriate attribute of the power to legislate indeed, was treated as inhering in it. McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976), Eastland, 421 U.S. at Pursuant to the Constitution s Rulemaking Clause, U.S. Const. art. I, 5, cl. 2, which provides that [e]ach House [of Congress] may determine the Rules of its Proceedings, the House of Representatives has delegated extensive oversight and investigative authority to its committees, including the Permanent Select Committee on Intelligence. See Rules of the House of Representatives ( House Rules ), Rule XI.1(b)(1) ( Each committee may conduct at any time such investigations and studies at it considers necessary or appropriate in the exercise of its responsibilities under rule X [providing for committees jurisdiction]. ). 8 As relevant here, the House has delegated to the Committee the authority to conduct oversight regarding the activities of the intelligence community, and jurisdiction over all legislative matters pertaining to the federal government s [i]ntelligence and intelligence-related activities. House Rules X.3(m), X.11(b)(1). To carry out these responsibilities, the Committee is empowered to issue subpoenas for testimony and documents. See House Rule XI.2(m)(1)(B); Rules of the Permanent Select Comm. on Intelligence ( Committee Rules ), Rule 10(b). 9 8 Available at Rules-115.pdf. 9 Available at _115th_congress.pdf. 13

23 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 23 of 54 Consequently, the role of this Court in reviewing the Committee s investigation is narrow and limited. So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power. Barenblatt, 360 U.S. at 132 (citation omitted). Unlike in disputes regarding civil discovery, where a rational legislative purpose is present for investigating a particular person, organization, or institution[,] [t]here is no requirement that every piece of information gathered in such an investigation be justified before the judiciary. McSurely v. McClellan, 521 F.2d 1024, 1041 (D.C. Cir. 1975), aff d in part, rev d in part, and remanded by McSurely v. McClellan, 553 F.2d 1277, 1280 (D.C. Cir. 1976) (en banc); see also Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938) ( A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry, which generally is very broad. ); Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) ( once a committee or subcommittee has in fact requested trade secret information, the separation of powers demands that the courts do little to interfere with how the Congress deals with this information ). The Supreme Court has recognized that a congressional investigation may lead up some blind alleys and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result. Eastland, 421 U.S. at 509. As there can be no question regarding the significant public importance of the Committee s inquiry, it is not this Court s function to adjudicate the motivations of the Committee or second guess the Committee s reasonable determinations regarding the need for this information. 14

24 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 24 of 54 All Committee and House Rules Were Followed With Respect to the Subpoena At Issue. Plaintiff asserts that Defendant Bank should be enjoined from compliance with the Committee s subpoena because it fails to comply with [Committee] rules. Pl. Mem. 6. Plaintiff advances several theories to support its claim of non-compliance. Each is unavailing. First, Plaintiff contends that the subpoena is defective because it was signed by a Congressman with no authority to sign it. Pl. Mem. 5. According to Plaintiff, Chairman Nunes has recused himself from the [Committee s] investigation and therefore lacks authority to sign subpoenas. See id. Second, Plaintiff asserts that the subpoena was not properly authorized by Representative Conaway or by a vote of the full Committee. See Pl. Mem. 6. Finally, Plaintiff complains that Committee Rule 10(e) was violated because the subpoena at issue did not include a copy of the Committee s rules. Pl. Mem Plaintiff is incorrect about the law, the application of the Committee Rules, and the basic facts regarding Chairman Nunes alleged recusal. As an initial matter, it is well-established law in this Circuit that [t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citation omitted). In other words, this Court must presume that government officials, such as Members of Congress, will act properly in the conduct of their official duties. Accordingly, the Committee does not bear the burden of demonstrating that it adhered to its 10 Plaintiff also includes a red herring regarding the House Ethics Committee s inquiry into actions by Representative Nunes. See Pl. Mem. 5, n.1. Even assuming everything Plaintiff intends the Court to infer about the nature of the Ethics Committee investigation is correct, it is irrelevant to the Chairman s power pursuant to House and Committee Rules. Simply put, there is no House Rule that divests Committee Chairmen of their power because of an investigation by the Ethics Committee, and Plaintiff cites to no authority to the contrary. 15

25 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 25 of 54 rules. Rather, the burden rests with Plaintiff to clearly establish a violation of the Committee Rules. Plaintiff cannot satisfy this burden. To start, Plaintiff errs in claiming that Chairman Nunes is recused from this investigation. On April 6, 2017, Chairman Nunes announced that Representative Mike Conaway, with assistance from Representatives Trey Gowdy and Tom Rooney, would temporarily take charge of the investigation, but that Chairman Nunes would continue to fulfill all my other responsibilities as Committee Chairman[.] Press Release, Permanent Select Comm. on Intelligence, Nunes Statement on Russia Investigation (Apr. 6, 2017). 11 He did not recuse himself from the investigation. Chairman Nunes statement establishes only that, consistent with Committee Rules, he designated other Committee members to take charge of the investigation. See Comm. Rule 9(b) ( An authorized investigation may be conducted by members of the Committee or Committee Staff designated by the Chair, in consultation with the Ranking Minority Member. ). Nothing in his statement or elsewhere indicates that he was recusing himself from any involvement in the investigation or relinquishing any of his other powers as the Committee s Chairman. To the contrary, Chairman Nunes statement makes clear that he always intended to maintain the full panoply of his other powers as Chairman. And neither the Committee, nor the House, has taken any action to transfer those powers from Chairman Nunes to another Member of the Committee. Pursuant to Committee Rules, [a]ll subpoenas shall be authorized by the Chair of the full Committee, Comm. Rule 10(a), and are to be signed by the Chair, id. at Rule 10(c). Thus, issuance of subpoenas is one of the powers of the Committee Chair, and it is a power that Chairman Nunes retains. Plaintiff s assertions to the contrary have no basis in fact or law. 11 Available at 16

26 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 26 of 54 Plaintiff also errs in contending (without any supporting evidence) that Representative Conaway did not request issuance of the subpoena. As Representative Conway confirmed to the press before this action was filed, he not only asked for the subpoenas, but also acknowledged that the mechanics on that fit in with the [C]hairman s responsibilities. Evan Perez, Manu Raju, and Jeremy Herb, Nunes Signs Off On New Subpoenas to Firm Behind Trump-Russia Dossier, CNN (Oct. 10, 2017, 9:47 PM). 12 Stewart Decl. 15. Given these facts, the Committee s subpoena is unquestionably valid. Chairman Nunes authorization and signature were necessary prerequisites to issuance of the subpoena under the Committee s rules, and he did in fact authorize and sign the subpoena. Stewart Decl. 14. Finally, the Committee s failure to initially attach a copy of its rules to the subpoena is an irrelevant technicality. Nothing in the Committee s Rules suggests that a subpoenas validity depends on adherence to this Rule and Plaintiff cites to nothing suggesting otherwise. It is also worth noting that on October 16, when this objection was initially raised, the Committee immediately provided Plaintiff a hyperlink to its rules, 13 which, as evidenced by Plaintiff s papers, it obviously has relied on. See Pl. Mem Plaintiff has not and cannot demonstrate any prejudice or other harm suffered by this technicality. Accordingly, the Committee s rules provide no legal basis for this Court to conclude that either the Committee s investigation or the subpoena at issue is invalid, and no reason to issue an order preventing Defendant Bank from complying with a lawful congressional subpoena. The Committee s Investigation Is Fully Authorized by House Resolution. 12 Available at 13 Similarly, on October 18 when this identical objection was raised by Defendant Bank, the Committee also provided Defendant Bank with a copy of its rules. 17

27 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 27 of 54 Plaintiff asserts that the issuance of the subpoena is without authority because Mr. Nunes has acted alone, pursuant to no resolution. Pl. Mem. 7. In Plaintiff s view, no formal public unambiguous resolution authorizes this investigation and thus the subpoena is not part of a legitimate legislative activity. Id. (citing Eastland, 421 U.S. at 506). Plaintiff is mistaken, because the Committee s investigation falls well within the scope of the express authorization provided by House Resolution 5, which was approved by the full House on the opening day of the 115th Congress. See 163 Cong. Rec. H7-H11 (daily ed. Jan. 3, 2017) (approving H. Res. 5 by vote of ). Among other things, House Resolution 5 adopted the Rules of the House for the 115th Congress, and those Rules contain an unambiguous authorization to the Committee empowering it to review and study on a continuing basis laws, programs, and activities of the intelligence community[.] Rule X.3(m). In addition, House Rule X.11(b)(1) confers legislative jurisdiction on the Committee regarding: (A) The Central Intelligence Agency, the Director of National Intelligence, and the National Intelligence Program as defined in section 3(6) of the National Security Act of (B) Intelligence and intelligence-related activities of all other departments and agencies of the Government, including the tactical intelligence and intelligence-related activities of the Department of Defense. House Rule X.11(b)(1)(A)-(B). 14 The investigation falls squarely within this broad grant of oversight and legislative authority. The Committee has information that Plaintiff was involved in interactions with Russian entities and individuals who are suspected of involvement in alleged efforts by Russia to 14 The National Intelligence Program over which the Committee exercises jurisdiction refers to all programs, projects, and activities of the intelligence community, as well as any other programs of the intelligence community designated jointly by the Director of National Intelligence and the head of a United States department or agency or by the President. 50 U.S.C. 3003(6). It encompasses six Federal Departments, the Central Intelligence Agency, a and the Office of the Director of National Intelligence. Office of the Dir. Of Nat l Intelligence, 18

28 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 28 of 54 interfere in the 2016 election. Stewart Decl. 9. Moreover, it has been widely reported that Plaintiff was intimately involved in development and dissemination of the Trump Dossier, which was (i) prepared by a former intelligence agent who had allegedly previously worked for the FBI, (ii) allegedly compiled in part on the basis of information gathered by or in the possession of Russian Intelligence, and (iii) allegedly provided by Plaintiff to the intelligence community. Stewart Decl Accordingly, the Committee is investigating Plaintiff s role in all of these activities, including but not limited to the genesis, creation, and use of the dossier. All of these matters unquestionably relate to programs, and activities of the intelligence community and the Committee therefore has House-conferred jurisdiction to investigate them. Moreover, the Committee s investigation of these matters will provide information to guide the Committee in its consideration of possible legislation aimed at addressing any perceived problems or threats that may be revealed by the investigation; consideration of such legislative efforts is also within the jurisdiction conferred on the Committee by House Resolution 5. Plaintiff s claim that the Committee lacks authority to investigate these matters is therefore patently without merit. Plaintiff appears to take the position that Eastland stands for the proposition that every single congressional investigation must be authorized by a separate, stand-alone resolution directed solely to that investigation. The Eastland Court said nothing of the kind. Rather, the Court merely considered whether there existed a grant of authority sufficient to show that the investigation upon which the Subcommittee had embarked concerned a subject on which legislation could be had, and concluded that such a grant of authority did exist. Eastland, 421 U.S. at 506 (quoting McGrain, 273 U.S. at 177). The same is true here, by virtue of House Resolution 5, as well as the Committee Rules, which permit the Chair to initiate and determine 19

29 Case 1:17-cv TSC Document 12 Filed 10/23/17 Page 29 of 54 the scope of any investigations. See Comm. Rule 9(a) ( The Committee shall conduct investigations only if approved by the Chair, in consultation with the Ranking Minority Member. ). Plaintiff s apparent belief that an investigation-specific resolution is required would invalidate the vast majority of congressional investigations, and has never been adopted by any court. To the contrary, courts in this Circuit have repeatedly deemed congressional subpoenas to be enforceable in the absence of any such investigation-specific authorizing resolution. See, e.g., United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976); Comm. on Oversight & Gov t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013); Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). Plaintiff s arguments to the contrary cannot withstand scrutiny. The Right to Financial Privacy Act ( RFPA ) Does Not Apply to Congressional Subpoenas. Plaintiff contends that the subpoena cannot be enforced against Defendant Bank because the Right to Financial Privacy Act ( RFPA ), 12 U.S.C et seq., prohibits banks from releasing customer records to a Government authority in these circumstances. Pl. Mem. 8. Plaintiff is simply incorrect. As an initial matter, Plaintiff has no rights under RFPA. The nondisclosure protections relied upon by Plaintiff apply only to the financial records of any customer. 12 U.S.C The term customer means only a person or authorized representative of that person, and person means an individual or a partnership of five or fewer individuals. 12 U.S.C. 3401(4) & (5) (emphasis added). Plaintiff is a limited liability company under Delaware law, not a partnership or individual, and therefore Plaintiff lacks standing to assert any claims under RFPA. See Exchange Point LLC v. SEC, 100 F. Supp. 2d 172, 176 (S.D.N.Y. 1999) (holding 20